UNITED STATES, Appellee

v.
Eric J. LEONARD, Airman First Class
U.S. Air Force, Appellant
No. 05-0445
Crim. App. No. 35444
United States Court of Appeals for the Armed Forces
Argued April 4, 2006
Decided August 9, 2006
GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Gary Myers, Esq. (argued); Lieutenant Colonel
Mark R. Strickland and Captain Anthony D. Ortiz (on brief);
Colonel Carlos L. McDade, Major Sandra K. Whittington, and Major
James M. Winner.
For Appellee: Major Michelle M. Lindo McCluer (argued);
Lieutenant Colonel Gary F. Spencer and Major Matthew Ward (on
brief); Lieutenant Colonel Michael E. Savage and Major John C.
Johnson.
Military Judge:

Thomas W. Pittman

This opinion is subject to revision before final publication.

United States v. Leonard, No. 05-0445/AF

Chief Judge GIERKE delivered the opinion of the Court.1

A servicemember does not have a Sixth Amendment right to
trial by jury.2

However, Congress has established the court-

martial as the institution to provide military justice to

service members.3

Congress has also afforded every

servicemember the right to have a court-martial of panel members

for both a general and a special court-martial.4
This Court has stated that the cornerstone of the military
justice system is the right to members who are fair and
impartial.5

Indeed, this right to fair and impartial members is

so important that the process of selecting a court-martial panel

enjoys protections under the Constitution,6 statute,7
regulations,8 and case law.9

We heard oral argument in this case at the United States Air

Force Academy in Colorado Springs, Colorado, as part of the
Courts Project Outreach. See United States v. Mahoney, 58
M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was developed
as part of a public awareness program to demonstrate the
operation of a federal court of appeals and the military justice
system.
2
United States v. Kemp, 22 C.M.A. 152, 154, 46 C.M.R. 152, 154
(1973).
3
United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004).
4
Articles 16, 25, and 41, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. 816, 825, 841 (2000).
5
Dowty, 60 M.J. at 169 (citing United States v. Roland, 50 M.J.
66, 68 (C.A.A.F. 1999); United States v. Hilow, 32 M.J. 439, 442
(C.M.A. 1991)).
6
See U.S. Const., amend. V (Due Process Clause); U.S. Const.,
amend. XIV (Equal Protection Clause); Frontiero v. Richardson,
411 U.S. 677, 680 (1973) (concept of equal protection of the
laws applies to members of the armed forces through the Due
Process Clause of the Fifth Amendment); United States v.
Downing, 56 M.J. 419, 421 (C.A.A.F. 2002) (As a matter of due
2

United States v. Leonard, No. 05-0445/AF

The present case requires this Court to address two issues

related to the member selection process.10

First, whether

process, an accused has a constitutional right, as well as a

regulatory right, to a fair and impartial panel.) (quoting
United States v. Wiesen, 56 M.J. 172, 174 (C.A.A.F. 2001));
United States v. Santiago-Davila, 26 M.J. 380 (1988) (finding no
reason to exclude members of the armed forces from equal
protection analysis of Batson v. Kentucky, 476 U.S. 79, 91
(1986), which prohibits discriminatory use of peremptory
challenges in jury selection).
7
Article 25(d)(2), UCMJ (providing for the convening authority
to select members who are best qualified by reason of age,
education, training, experience, length of service, and judicial
temperament).
8
Rule for Court-Martial (R.C.M.) 502(a) (concerning
qualifications of court-martial members); R.C.M. 503(a)
(concerning procedures for the selection of members); R.C.M.
912) (addressing voir dire procedures and challenges to court
members).
9
Wiesen, 56 M.J. at 174 (quoting United States v. Modesto, 43
M.J. 315, 318 (C.A.A.F. 1995) (Impartial court-members are a
sine qua non for a fair court-martial.); United States v.
Tulloch, 47 M.J. 283, 287 (C.A.A.F. 1997) (applying a different
standard for assessing the validity of trial counsels proffered
race-neutral explanation as required by the equal protection
analysis of Batson, 476 U.S. at 91); Dowty, 60 M.J. at 172
(finding error to inject into the panel selection process the
irrelevant variable of a servicemember volunteering to be a
member).
10
This Court granted review on five issues. Because of our
disposition based solely on Issue I, we do not address the other
granted issues. The granted issues are:
I.

IN LIGHT OF UNITED STATES V. MILES, 58 M.J. 192 (C.A.A.F.

2003),
A. WHETHER THE MILITARY JUDGE ERRED BY NOT GRANTING TWO
DEFENSE CHALLENGES FOR CAUSE AGAINST A MEMBER WHOSE
DAUGHTER HAD BEEN RAPED FIVE YEARS EARLIER AND A
MEMBER WHO HAD FREQUENT INTERACTION WITH THE ALLEGED
RAPE VICTIM;
B. WHETHER IT IS APPROPRIATE TO APPLY WAIVER WHERE THE
DEFENSE USED ITS PEREMPTORY CHALLENGE AGAINST ONE OF
THE TWO MEMBERS CHALLENGED FOR CAUSE AND, DURING
CLEMENCY, MADE IT CLEAR THAT IT WOULD HAVE USED THAT
3

United States v. Leonard, No. 05-0445/AF

Appellant preserved any issue related to the denial of his

challenge in light of the waiver provision of R.C.M. 912(f)(4).
Second, if an appellate issue is preserved, whether the military
judge erred in denying a defense causal challenge based on
either actual or implied bias.
We hold that Appellant waived review of the issue related
to the military judges denial of a causal challenge of one
member but preserved a similar issue as to another member.

Also

we hold that the military judge abused his discretion and

violated the liberal grant mandate as to a causal challenge and

PEREMPTORY CHALLENGE ON THE OTHER CHALLENGED MEMBER

BUT FOR THE MILITARY JUDGES ERROR;
C. WHETHER IF WAIVER APPLIES TRIAL DEFENSE COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY NOT
PROPERLY PRESERVING THE CHALLENGES FOR CAUSE.
II. WHETHER THE MILITARY JUDGE ERRED BY APPLYING MRE 412 TO
SUPPRESS DEFENSE EVIDENCE OF THE ALLEGED VICTIMS MOTIVE
TO LIE AND PRIOR SEXUAL BEHAVIOR WITH APPELLANT.
III. WHETHER THE MILITARY JUDGE ERRED BY DENYING A DEFENSE
MOTION TO SUPPRESS A WRITTEN CONFESSION TO THE AIR FORCE
OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) WHERE - PRIOR TO
AN IMMINENT INTERROGATION APPELLANT USED A THIRD PARTY
TO INVOKE HIS RIGHTS TO REMAIN SILENT AND REQUEST
COUNSEL.
IV. WHETHER THE MILITARY JUDGE ERRED BY NOT PROVIDING THE
MEMBERS A MISTAKE-OF-FACT INSTRUCTION WHERE SOME EVIDENCE
RAISED THE AFFIRMATIVE DEFENSE BUT APPELLANTS COUNSEL
DID NOT RELY ON THAT THEORY.
V.
WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO CONVICT
APPELLANT OF RAPE WHERE THE ALLEGED VICTIM CLAIMED TO
SLEEP THROUGH THE ENTIRE INCIDENT EVEN THOUGH SHE WAS NOT
DRUNK, DRUGGED, OR SUFFERING FROM A SLEEP DISORDER.
United States v. Leonard, 62 M.J. 387, 388 (C.A.A.F. 2005).

United States v. Leonard, No. 05-0445/AF

improperly denied Appellants causal challenge of the second

panel member based on implied bias.
Factual Background
A.

General Background of the Alleged Rape

Appellant and a female servicemember, Airman First Class

(A1C) CH, engaged in a social evening of drinking with friends
and acquaintances at an on-base club.

Although Appellant and CH

knew each other, they were not close friends.

heavily and became intoxicated.

Appellant drank

CH had only one drink.

Appellant asked CH to take care of him.

CH agreed and took

the intoxicated Appellant to her dorm room where they both fell
asleep on her bed.

That evening Appellant engaged in sexual

intercourse with CH.

The following day, CH accused Appellant of

raping her while she was sleeping.

Appellant was charged with

rape in violation of Article 120, UCMJ,11 and the case was

referred to a general court-martial.
B. Trial Developments Related to
Selection of the Two Panel Members
As Appellant elected a court-martial consisting of officer
and enlisted members, the court-martial proceeded, through the
voir dire process, to screen the panel members and to identify
and provide the parties a fair and impartial panel.

During voir

dire, Lieutenant Colonel (LTC) D disclosed that his daughter had

been raped by a friend of hers while she was in high school.
11

10 U.S.C. 920 (2000).

5

United States v. Leonard, No. 05-0445/AF

He stated that the incident occurred five years prior to this

court-martial.

He further explained that he and his wife had

urged their daughter to press charges but she had refused to do

so.

LTC D also stated that he was a neighbor of the staff judge

advocate involved in this case.

Captain (CPT) P, a pilot, disclosed that he worked with CH
in the same unit.

CPT P stated that he and CH only exchanged

pleasantries in the hallway.

He also revealed that CH was

responsible for his flight equipment and was entrusted to pack

his parachute.

Over a period of six to twelve months, he would

bring his professional flying gear, that is, his flight helmet
or parachute, to her for servicing.

However, CPT P claimed that

he had not formed an opinion as to her credibility.

After voir dire was complete, trial defense counsel
challenged LTC D for actual and implied bias.

Trial defense

counsel supported his challenge with the following argument:

[O]ne can almost not envision a more traumatic
psychological effect than having one of your children
victimized of the same serious crime that Airman Leonard is
accused of. Whats noteworthy here too, is he tried to get
his daughter to pursue prosecuting that particular crime,
and she didnt want to. If I was in [Lieutenant] Colonel
[Ds] position I dont know how I would go home at the end
of the day and never be able to tell my daughter that I sat
on a rape case and acquitted the individual, and I dont
know that - that anyone viewing this trial could possibly
believe considering what Lieutenant Colonel [D] and his
family have gone through that Airman Leonard is getting a
fair trial.

United States v. Leonard, No. 05-0445/AF

As to CPT P, trial defense counsel challenged him based on

implied bias and made the following argument to support this
challenge:
[CPT P] knows [CH], the victim in this case. He has
contact with her on a weekly basis. Again, the mere fact
that he knows her. They work together, he has contact with
her, and that she is the critical witness in this case
against Airman Leonard, we believe would raise eyebrows and
would - would cause a third party looking on this trial to
wonder with a juror like that if Airman Leonard is getting
the fair and impartial panel hes entitled to, sir.
The military judge denied both challenges.

As to LTC D,

the military judge explained that his ruling was based on the
fact that the rape of LTC Ds daughter occurred five years ago
and his view that the unemotional demeanor LTC D displayed in
discussing the matter demonstrated LTC Ds fairness.

Regarding

CPT P, the military judge opined that the interaction of the

member with the victim was infrequent, even as it related to
obtaining life-support gear, and that CPT P had not formed an
opinion as to the credibility of the victim.
Trial defense counsel then used his sole peremptory
challenge to remove LTC D, but did not state that he would have
used his peremptory challenge against any other member or CPT
P.12

12

Appellant pleaded not guilty, and the trial proceeded on

R.C.M. 912(f)(4).
7

United States v. Leonard, No. 05-0445/AF

the merits.

The panel convicted Appellant of the rape offense

and sentenced him.13

Discussion
R.C.M. 912(f)(1)(N) provides that a member [s]hould not
sit where his service would raise substantial doubt as to
[the] legality, fairness, and impartiality of the proceedings.
This rule includes challenges based on actual bias as well as
implied bias.14

Recognizing the distinction between these two

concepts, this Court has stated:

The test for actual bias is whether any bias is such that
it will not yield to the evidence presented and the judges
instructions. Napoleon, 46 M.J. at 283, quoting United
States v. Reynolds, 23 M.J. 292, 294 (CMA 1987). While
actual bias is reviewed through the eyes of the military
judge or the court members, implied bias is reviewed under
an objective standard, viewed through the eyes of the
public. Id., quoting Daulton [45 M.J. 212, 217 (C.A.A.F.
1996]. The focus is on the perception or appearance of
fairness of the military justice system. Dale, 42 M.J.
[384, 386 (C.M.A. 1995)]. At the same time, this Court has
suggested that the test for implied bias also carries with
it an element of actual bias. Thus, there is implied bias
when most people in the same position would be
prejudiced. United States v. Armstrong, 54 M.J. 51, 53-54
(2000), quoting United States v. Warden, 51 M.J. 78, 81
(1999); United States v. Smart, 21 M.J. 15, 20 (CMA 1985).
This Court has also determined that when there is no actual

13

The court-martial convicted Appellant, contrary to his plea,

of one specification of rape in violation of Article 120, UCMJ.
The adjudged and approved sentence provides for a reduction to
E-1, forfeiture of all pay and allowances, confinement for two
years, and a dishonorable discharge from the service. The Court
of Criminal Appeals affirmed the findings and sentence. United
States v. Leonard, No. ACM 35444, 2005 CCA LEXIS 68, at *8, 2005
WL 486358, at *3 (A.F. Ct. Crim. App. Feb. 28, 2005).
14
United States v. Youngblood, 47 M.J. 338, 341 (C.A.A.F. 1997).
8

United States v. Leonard, No. 05-0445/AF

bias, implied bias should be invoked rarely.

States v. Rome, 47 M.J. 467, 469 (1998).15

United

The two purposes of R.C.M. 912(f)(1)(N) are to protect the

actual fairness of the court-martial and to bolster the
appearance of fairness of the military justice system in the
eyes of the public.16
To further serve these purposes, and in light of the one
peremptory challenge provided for in R.C.M. 912(g), this Court
has repeatedly emphasized the need for a military judge to
follow a liberal grant mandate in ruling on challenges for
cause.17

A military judges decision whether to grant a

challenge for cause based on actual bias is reviewed for an

abuse of discretion.18

This deferential standard exists because

we recognize that he has observed the demeanor of the

participants in the voir dire and challenge process.19

However,

we give a military judge less deference on questions of implied

15

Wiesen, 56 M.J. at 174.

United States v. Dale, 42 M.J. 384, 386 (C.A.A.F. 1995)(citing
R.C.M. 912(f)(1)(N)).
17
Miles, 58 M.J. at 194; Wiesen, 56 M.J. at 174; Youngblood, 47
M.J. at 341; Dale, 42 M.J. at 386; United States v. Moreno, 63
M.J. 129, 134 (C.A.A.F. 2006).
18
United States v. James, 61 M.J. 132, 138 (C.A.A.F. 2005).
19
Youngblood, 47 M.J. at 341 (citing United States v. Lavender,
46 M.J. 485, 488 (C.A.A.F. 1997)); see also Miles, 58 M.J. at
194-95.
16

United States v. Leonard, No. 05-0445/AF

bias.20

Implied bias is reviewed through the eyes of the

public.21
Another important part of the challenge process of R.C.M.
912 is the specific procedure to preserve issues for appellate
review.

R.C.M. 912(f)(4) states:

When a challenge for cause has been denied, failure by the

challenging party to exercise a peremptory challenge
against any member shall constitute waiver of further
consideration of the challenge upon later review. However,
when a challenge for cause is denied, a peremptory
challenge by the challenging party against any member shall
preserve the issue for later review, provided that when the
member who was unsuccessfully challenged for cause is
peremptorily challenged by the same party, that party must
state that it would have exercised its peremptory challenge
against another member if the challenge for cause had been
granted.
The analysis to R.C.M. 912(f)(4) explains that the
requirement of preserving the objection for the record is
designed to prevent a windfall to a party which had no intent
to exercise its peremptory challenge against any other member.22
When the requirements of R.C.M. 912(f)(4) are met, this Court
will not apply waiver.
Therefore, when counsel unsuccessfully challenges a member
for cause and then peremptorily challenges that member, the
issue is waived, unless counsel states on the record that the

20

Youngblood, 47 M.J. at 341.

Lavender, 46 M.J. at 488; United States v. Napoleon, 46 M.J.
279, 283 (C.A.A.F. 1997).
22
Manual for Courts-Martial, United States, Analysis of the
Rules for Courts-Martial app. 21 at A21-61 (2005 ed.) (citing
United States v. Harris, 13 M.J. 288 (C.M.A. 1982)).
21

10

United States v. Leonard, No. 05-0445/AF

peremptory challenge would have been used against another member

if the challenge for cause had been granted.23
In the present case, trial defense counsel did not make
this mandatory statement on the record.

Because Appellant used

his sole peremptory challenge to remove LTC D from the panel,

and did not state on the record that the peremptory challenge
would have been exercised against another member if the
challenge for cause had been granted, any error as to LTC D was
waived.24

Accordingly, we will not address the merits of

petitioners claim that the military judge erred by not granting

the challenge as to LTC D.
How the waiver provision of R.C.M. 912(f)(4) affects the
denial of the challenge for cause of CPT P requires its own
analysis.

As quoted above, R.C.M. 912(f)(4) provides, However,

when a challenge for cause is denied, a peremptory challenge by

the challenging party against any member shall preserve the
issue for later review. . . .

The requirement, to state on the

record that the objecting party would have exercised its

peremptory challenge against another member if the challenge for
cause had been granted, applies only when a member who was
unsuccessfully challenged for cause is peremptorily challenged
by the same party.

Therefore, the challenge against CPT P was

23

See United States v Eby, 44 M.J. 425, 427 (C.A.A.F. 1996);

R.C.M. 912(f)(4).
24
R.C.M. 912(f)(4).
11

United States v. Leonard, No. 05-0445/AF

preserved for later review because the peremptory challenge was

used on someone other than CPT P.
The Governments position, that the issue is waived for
failure to state on the record that the challenge would have
been used elsewhere, is flawed.

The waiver provision could not

apply to CPT P, because Appellant used his single peremptory

challenge against LTC D and did not have an additional
peremptory challenge to use.

Trial defense counsel could not be

required to state that he would have used a nonexistent

peremptory challenge against another member.

Moreover, R.C.M.

912(f)(4) requires that when a challenge for cause has been

denied, failure by the challenging party to exercise a
peremptory challenge against any member shall constitute waiver.
. . .

Defense counsel used his peremptory challenge against

LTC D (any member), thus he preserved his challenge for cause

against CPT P.
Therefore trial defense counsel preserved for appellate
review the issue relating to the military judge denying the
defense causal challenge to CPT P.

We now turn to the question

of whether the military judge abused his discretion in denying

the causal challenge to CPT P.
Again, we note that this Court has enjoined military judges
to follow a liberal grant mandate in evaluating challenges for
cause because implied bias is reviewed under an objective

12

United States v. Leonard, No. 05-0445/AF

standard,25 through the eyes of the public and focusing on the

appearance of fairness.26

Applying this standard, we hold that

the military judge abused his discretion and violated the

liberal grant mandate.27
CPT P acknowledged that he had encountered CH at least once
a week.

Most importantly he revealed that her responsibilities

for his flying gear included packing his parachute and servicing
his pilot helmet.
trust.

This relationship must have been one of

In this acquaintance rape case where the credibility of

the alleged victim is the linchpin of the case, CPT Ps

significant relationship of trust with CH diminishes public
perception of a fair and impartial court-martial panel.

This

situation undermines the appearance of fairness in the military

justice system and, therefore, the military judge erred in
failing to follow the liberal grant mandate.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is reversed.

The findings and sentence are set

aside and a rehearing is authorized.

25
26
27

United States v. Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996).

United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998).
See Miles, 58 M.J. at 195.
13